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Draughon v. United States

United States District Court, D. Kansas

February 23, 2018

DONALD DRAUGHON, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          JULIE A. ROBINSON CHIEF UNITED STATES DISTRICT JUDGE

         Plaintiff Donald Draughon brings this Federal Tort Claims Act (“FTCA”) wrongful death action against the United States of America, alleging the Veterans Health Administration (“VA”) was negligent in treating his son William Draughon (“William”), which ultimately led to his suicide. This case was tried to the Court beginning on January 3, 2018. This decision represents the Court's findings of fact and conclusions of law as required by Fed.R.Civ.P. 52. As described more fully below, the Court finds in favor of Plaintiff and directs him to file an affidavit setting forth his notice efforts as required by Mo. Rev. Stat. § 537.095.1, no later than March 23, 2018.

         I. Findings of Fact

         Cpl. William P. Draughon (“William”) was born on October 12, 1981. William's parents divorced when he was young. Starting at about age seven, his father, Plaintiff Donald Draughon, and his stepmother, Laurie Draughon, obtained full custody of him and his younger brother Corey. William attended North Kansas City High School, where he was very involved in wrestling and football. Friends and family describe him as funny, well-liked and happy, and they insist that he did not have any issues with behavior or substance abuse. According to his ex-wife Jennifer Campbell, who was also his high school sweetheart, William experimented with alcohol and marijuana, but did not drink to excess in high school. Donald recalls an incident when he found beer at William's sixteenth-birthday party and they argued; William hit him. According to Donald, this was an isolated incident, and William was apologetic.

         William enlisted with the United States Marine Corps in February 2001, when he was nineteen years old. After deployments to Japan, Australia, and Afghanistan, William returned to the United States and married Campbell. She moved to San Diego to be with him. In early 2004, William deployed for a seven-month combat tour in Iraq that ended on or around October 2004. William was a squad leader and gunner during his tour in Iraq. He was exposed to fire fights, improvised explosive devices (“IED”), grenades, and land mines. Several members of William's squad died during his tour in Iraq, and he expressed feelings of guilt and responsibility for their deaths and having kept their dog tags on the rearview mirror of his truck. William talked to Corey about how he struggled with his role as a gunner during the war, and about the things he was required to do to stay alive. Similarly, William expressed to Campbell over the phone when he was in Iraq that he was struggling with the deaths of his squad members, and with killing civilians.

         William received a citation for heroic service, and was honorably discharged in February 2005. Campbell, Corey, and Donald and Laurie Draughon all testified that William was a changed man when he returned from Iraq. He was depressed, short-tempered, avoided crowds, and was quiet, reserved, and distant. He suffered from nightmares and was easily startled. He would have sleeping binges, and then disappear for days. They also noticed him drinking to excess for the first time. Glenn Hamby, who served in the Marines with William, described him upon return as different: “[U]p until the time we deployed, I never once seen Will as an angry person. I've never seen him mad ever. And when we got home he was different.”[1]

         William was diagnosed as having posttraumatic stress disorder (“PTSD”) at the time of his discharge from military service. In February 2005, William expressed his intention to seek help from the VA for disability and for his PTSD. On at least two occasions in 2005, William was violent with Campbell, at one point attempting to strangle her during an episode when he apparently believed he was in combat. By July 5, 2005, Campbell decided to leave him. The divorce became final in December 2005.

         By the fall of 2005, William had a brief relationship with Andrea Brightwell that ended in early 2006. They lived together, and she became pregnant with his child. Brightwell testified that William drank consistently, and would sneak out and not return home on the weekends. She recalled one incident when William sat up in bed in the middle of the night in a trancelike state. She also recalled William sitting in his truck staring at the dog tags he kept of the deceased squad members he lost in Iraq. Brightwell knew William had been diagnosed with PTSD at that time. William and Brightwell's daughter, R.B., was born in September 2006, but prior to 2010, Brightwell would not allow William to spend time alone with her due to his drinking.

         Plaintiff called Dr. Steven Bruce as an expert on PTSD. Dr. Bruce is a clinical psychologist who runs his own trauma clinic that serves individuals suffering from PTSD, including many veterans. His primary area of research is PTSD, and he has been extensively published on the topic over the last twenty-four years. He has also worked in two different VA hospitals in their PTSD units. Dr. Bruce explained that PTSD occurs when there are changes to the brain associated with trauma. It usually involves three clusters of symptoms: (1) re- experiencing symptoms, such as reminders, flashbacks, and nightmares; (2) hyperawareness symptoms, such as difficulty sleeping and hypervigilance when in public; and (3) avoidance symptoms-efforts to avoid talking and thinking about the underlying trauma. Often, the avoidance symptoms lead to alcohol use; 50% of people with PTSD also have a substance abuse disorder. In veteran samples, Dr. Bruce explained the percentage is closer to 75%. PTSD can cause impulsive behavior, and can ultimately lead to suicide. Dr. Bruce cited a study that compared individuals who experienced trauma and those who have not, finding that those with PTSD have a 34% suicide rate. PTSD is not a diagnosis based on overt symptoms; the vast majority of symptoms are internal. Precipitators, or natural day-to-day stressors, can trigger PTSD symptoms, which often lead to impulsive behavior because PTSD decreases a patient's ability to use normal coping strategies for these precipitators.

         It is therefore difficult for non-mental health professionals to see overt signs of PTSD. Dr. Michael Allen, who works with patients at risk for suicide, and with veterans suffering from PTSD, testified that PTSD symptoms typically increase and decrease periodically. They may become more manageable, but they continue at some level indefinitely. Laypersons do not have the education necessary to recognize PTSD symptoms.

         Dr. Bruce acknowledged that the order for treating individuals with both PTSD and a comorbid condition like substance abuse can be difficult to determine, and that it would be important to try to discern the root cause of the patient's symptoms. The VA's Clinical Practice Guidelines for the Management of Post-Traumatic Stress supports this conclusion:

Patients with PTSD frequently use alcohol and other substances in maladaptive ways to cope with their symptoms. (Approximately 40 to 50 percent of PTSD patients treated in the VA have current substance use problems . . . .) Effective PTSD treatment is extremely difficult in the fact of active substance use problems unless substance use[] disorders are also treated. Most often, attempts to address substance problems should proceed concurrently with the direct management of PTSD. However, in cases when the substance use is severe, substance use may require initial treatment and stabilization before progressing to PTSD care (e.g., patient requires detoxification from opiates) . . . .[2]

         Between February 2005 and August 26, 2009, William attended mental health appointments at the Veterans Affairs Kansas City, Missouri Medical Center (“KCVA”) on five occasions: August 4, 2005; April 7, 2008; December 16, 2008; January 20, 2009; and March 31, 2009. When William began mental health treatment at the KCVA in August 2005, he reported having severe guilt about loss of his troops under his command; being transiently suicidal; hearing sounds in his head such as explosions, choppers, screaming; being hyper alert; and “SI [suicidal ideation] present.”[3] William repeatedly reported to his VA healthcare providers that he was drinking more since he returned from Iraq, and he believed that he was self-medicating with alcohol. His PTSD screens were positive at his appointments in 2006 and 2008.

         In 2007, William reported a history of exposure to IED, grenades and land mines, after which he was dazed and confused. On April 7, 2008, William reported recurring combat nightmares and insomnia. He reported that “he has been abstaining all ETOH - still very tremulous/anxious” and there was a “positive PTSD screen.”[4] On March 31, 2009, William told his VA psychiatrist, Dr. McKnelly, that he struggled with the April 6-7 anniversary of losing some of his buddies in Iraq, and that he always drinks heavily on those dates. Dr. McKnelly noted during this appointment that William suffered from PTSD.

         William started dating Denise Cumberland in November 2007, and they lived together for a few months in early 2008. They broke up after William assaulted her, but then got back together briefly. Cumberland became pregnant, and their son, D.C., was born in November 2009. Although Cumberland was unaware of William's PTSD diagnosis until after his death, she witnessed some of the same behavior described by other close family members and friends- he drank excessively and only talked about how upset his experience in Iraq made him after a night of extensive drinking. In April 2008, Cumberland discovered a rope with a noose at the bottom hanging from their basement ceiling. According to Laurie Draughon and Campbell, William had no relationship with D.C. after he was born in the summer of 2009.

         On August 27, 2009, William drank alcohol to excess, dressed in camouflage, blackened his face, and wielded a knife. His girlfriend at this time, Jennifer Moran, called the police when she awoke to find him standing next to the bed, talking softly while holding the knife. William ran from police throughout his neighborhood, at one point laughing at them. He eventually woke up inside his dog house. The next morning, a friend took him to the KCVA, where he was admitted for a period of hospitalization between August 28, 2009 and September 2, 2009. William reported that this drinking binge the prior evening was triggered by him finding some medals and newspaper articles about the war.

         During this hospitalization, William admitted to suicidal ideation “off and on recently with thoughts of shooting himself or going off a bridge.”[5] He admitted to thinking of harming himself, and that he had a plan. He reported that “he was driving his truck last night ‘very fast and looking at something to crash into.'”[6] William reported that he had “horrible PTSD symptoms, ” including intense flashbacks of his friends dying, and “things that he had to do during the war.”[7] He reported drinking heavily to self-medicate. William told a nurse, a social worker, and a VA psychiatrist about two previous suicide attempts: (1) a few months earlier, he held a gun to his head and pulled the trigger, but it missed him; and (2) several weeks earlier, he carried a loaded gun around his house, told everyone to leave him alone, drank alcohol, and overdosed on his medication. His girlfriend found him unresponsive, and he was taken to another hospital and treated.

         The VA has a procedure in place for identifying patients at high risk for suicide. It contains “carefully defined criteria for high risk suicide” and references the warning signs and high-risk criteria described in the “Suicide Risk Assessment Guide Reference Manual.”[8] The Suicide Risk Assessment Guide Reference Manual includes a list of nonexhaustive factors that may increase or decrease a person's risk for suicide. While these factors are statistically related to suicidal behavior, “[t]hey do not necessarily impart a causal relationship.”[9] Some of the risk factors on this list are:

• Current ideation, intent, plan, access to means
• Previous suicide attempt or attempts
• Alcohol/substance abuse
• Current or previous history of psychiatric diagnosis
• Impulsivity and poor self-control . . . .
• Recent losses-physical, financial, personal
• Recent discharge from an inpatient psychiatric unit . . . .
• Co-morbid health problems, especially a newly diagnosed problem or worsening symptoms . . . .[10]

         Protective factors that may decrease a person's risk for suicide include:

• Positive social support
• Spirituality
• Sense of responsibility to family
• Children in the home, pregnancy
• Life satisfaction
• Reality testing ability
• Positive coping skills
• Positive problem-solving skills
• Positive therapeutic relationship[11]

         At the time William was admitted to the KCVA in August 2009, VHA Directive 2008-036 was in place: “Use of Patient Record Flags [“PRF”] to Identify Patients at High Risk for Suicide.”[12] The directive explains that “[t]he primary purpose of the High Risk for Suicide PRF is to communicate to VA staff that a veteran is at high risk for suicide and the presence of a flag should be considered when making treatment decisions.”[13] This flag appears in the patient's electronic medical record when any health care provider accesses the record. The VA directive makes clear that

The use of any PRF is restricted to addressing immediate clinical safety issues. As such, it is important to ensure that usage of a PRF is limited to only those patients at high risk, and only for the duration of the increased risk for suicide. The PRF is removed as soon as it is clinically indicated to do so. This is especially important to minimize the risk of undue stigmatization for the patient, and to maintain the value of the PRF system as an alert to immediate clinical safety concerns.[14]

         The directive further explains that whether a veteran is determined to be at high risk for suicide “is always a clinical judgment made after an evaluation of risk factors (e.g., history of past suicide attempts, recent discharge from an inpatient mental health unit), protective factors and the presence or absence of warning signs as listed on the VA Suicide Risk Assessment Pocket Card.”[15]

         VA Suicide Prevention Coordinators were provided with further guidance about their responsibilities in an April 24, 2008 Memorandum from the Principal Deputy Under Secretary for Health and Deputy Under Secretary for Health for Operations and Management, with the subject line “Patients at High-Risk for Suicide.”[16] The memo requires SPCs to report certain patients as high risk. Among other requirements:

Patients, who are admitted for hospitalization as a result of a high-risk for suicide ideation, must be placed on the high-risk list, and kept on the list for a period of at least 3 months after discharge. They must be evaluated at least weekly during the first 30 days after discharge. Other patients identified as surviving a suicide attempt and those who are placed on the high-risk list for other reasons should also be evaluated at least weekly for at least the next month.[17]

         The policy outlined in the April 24, 2008 memo also requires that SPCs “contact the veteran's primary care and/or mental health provider to ensure” they have a care plan including monitoring for suicidality and periods of increased risks. This plan must include specific processes of follow-up for missed appointments. In addition, there must be a written safety plan with specific features outlined in the policy, including a list of “situations, stressors, thoughts, feelings, behaviors and symptoms that suggest periods of increased risk, as well as step-by-step descriptions of coping strategies and help-seeking behaviors that can be used at these times.”[18]

         In addition, the VA's patient record flag directive provides that a facility's suicide prevention coordinator is responsible for, inter alia: “Assessing the risk of suicide in individual patients, in conjunction with treating clinicians, ” “[e]nsuring that patients identified as being at high risk for suicide receive follow-up for any missed mental health and substance abuse appointments in conjunction with the clinical treatment team, and that this follow-up is documented in the medical record, ” and “[m]aintaining a list of patients who currently have a flag, and establishing a system of reviewing these flags at least every 90 days.”[19]

         During the August 28 through September 2, 2009 period of hospitalization, William's suicide risk assessment screen was positive, and VA Suicide Prevention Coordinator Cherie Durkin set a high-risk flag for suicidal behavior in his electronic record on August 28, 2009. The medical note states:

Veteran is being added to the facility's High Risk List for Suicidal Behavior due to reported behaviors on Aug 28, 2009 requiring an immediate treatment plan change such as hospitalization. Veteran's electronic records will be reviewed in 90 days for evidence of continued or resolved risk factors, warning signs, and protective factors to consider continuance or removal from the High Risk list.[20]

         Durkin testified at trial about her role in and the guidelines for setting and removing the high-risk flag. She had no recollection of William's case, but testified that her role in setting this high-risk flag was “clerical.” She did not personally examine him, or exercise any clinical judgment in setting the flag.

         On August 31, 2009, the VA staff provided William with information about the Substance Abuse Residential Rehabilitation Treatment Program (“SARRTP”) for after his discharge, which is offered at the KCVA. SARRTP is a 28-bed residential rehabilitation program for treating substance abuse disorders, and provides services for “co-occurring medical conditions, mental illness, and psychosocial deficits.”[21] While there is voluntary PTSD programming available through this program, it is neither concentrated nor required.

         On September 1, 2009, VA staff provided William with information about the VA's Stress Disorders Treatment Program (“SDTP”) in Topeka. This program is offered to “veterans and active-duty soldiers who have experienced military-related trauma (e.g. combat trauma, military sexual trauma, other traumatic assaults) that has led to [PTSD], depression, substance abuse, and other life difficulties.”[22] It is a seven-week, twenty-two bed “intensive inpatient program designed to help veterans decrease symptoms, improve their quality of life, enhance self-esteem, return to work or school, and reintegrate with their families and communities.”[23]Admission to the program requires thirty days of sobriety, although it does include treatment programs targeting substance abuse. There is typically a two-week to three-month waiting period for the program, due to high demand and low availability.

         Most of the treatments available in the SDTP program are also available to patients on an outpatient basis through the KCVA, but the SDTP program offers it on an inpatient, concentrated basis. The SDTP program includes what Dr. Bruce deems “gold standard” evidence-based treatments for PTSD: Cognitive Processing Therapy (“CPT”), and in vivo, which is sometimes called Prolonged Exposure (“PE”). CPT involves writing out the events that happened to a veteran, and how it changed their life. In session, the patient reads the description repeatedly, and tries to challenge the generalizations behind their dealings with people based on those traumatic experiences. PE is similar, but the patient orally recounts the trauma repeatedly in multiple sessions. This type of therapy targets the avoidance symptoms associated with PTSD.

         On September 2, 2009, the date of his discharge, a VA psychologist strongly encouraged William to pursue admission to the SDTP program and provided him with informational materials, including an application. The SDTP application required applicants to write down their traumatic experiences in detail. Although William expressed a desire “to enter the program ASAP, ” he had not attained thirty days of sobriety by September 2. The psychologist also informed William of VA psychologist Dr. George Dent's PTSD Education and Symptom Management Group that meets weekly.

         As of September 9, 2009, William was planning to attend the SDTP program in Topeka if accepted.[24] On September 16, 2009, VA staff psychiatrist Thomas Demark, M.D. examined Plaintiff for the first time, and referred William to Dr. Dent for talk therapy. Dr. Demark works in the PTSD outpatient clinic at the KCVA. He and one other psychiatrist managed a caseload of between 2000 and 3000 patients, along with a team of psychologists, social workers, and other staff. On September 30, 2009, William met with Dr. Demark again, and reported an incident that week when he went out drinking at a bar, drove home, and was verbally abusive to his girlfriend. William had stopped taking his medication, and did not remember the events from that evening. On October 2, 2009, William met with a VA Suicide Prevention case manager, and expressed his continued interest in the SDTP program, but indicated he was not ready to fill out the application.

         William was hospitalized again at the KCVA again from October 4, 2009 until October 7, 2009. On October 4, 2009, at 2:09 a.m., the Kansas City Police Department brought William to the KCVA emergency room, because “[a]pparently he ha[d] medication today and began having flashbacks, ” and was positive for alcohol. The prior evening, William had been drinking around a campfire with a friend, talking about the war. William reported suicide ideation and was admitted for “mood and medication management and [alcohol] detox.”[25] While at the hospital, William rammed his head into a Plexiglas window, and had to be restrained by officers. On October 4, he admitted to suicidal thoughts, and that he had a specific plan of driving his car into a bridge.

         William told VA providers on October 5, 2009, that he wanted to attend SARRTP because his girlfriend would not let him return home without seeking help. At the time of discharge, Plaintiff was scheduled to follow-up with Dr. Demark 90 days later on January 7, 2010. He was admitted to SARRTP the day after discharge. Dr. Amalia Bullard was William's VA psychologist in the SARRTP program. She met with William twice during the program, addressing both substance abuse issues and PTSD. Because 30-50% of veterans in the program have PTSD, some treatment for that condition is also provided in SARRTP, including medication management, individual therapy with Dr. Bullard, and group therapy such as “Seeking Safety.”[26] During his meetings with Dr. Bullard, William told her he was experiencing “horrible PTSD symptoms, ” including flashbacks, anger and nightmares, and told her that he drinks heavily to “self-medicate” his PTSD.[27]

         Dr. Bullard determined that William's primary diagnosis was alcohol abuse, and his secondary diagnosis was PTSD. Accordingly, Dr. Bullard believed that the VA should treat William's alcohol dependence before tackling intensive PTSD treatment so that it would create more stability for his eventual PTSD treatment. Dr. Bullard's PTSD therapy with William focused on symptom management such as grounding, deep breathing, and medication management. She also testified that group therapies were offered to William in SARRTP to help target triggers and teach coping skills, including twelve-step education, and “Seeking Safety.”

         Dr. Bullard testified that she may suggest SDTP treatment for certain patients even if they have an active substance abuse disorder; however, it would depend on their readiness and motivation to work through the trauma. Dr. Bullard testified that it was typical for veterans to struggle with filling out the SDTP application, and that it was not uncommon for her to help veterans complete the application. But whether a veteran could complete the application helped her determine whether to recommend them for the program. Dr. Bullard believed that if they cannot complete the SDTP application, it often demonstrates their lack of readiness to participate in the difficult trauma processing therapy offered through SDTP. This explains why, despite making an appointment with William on October 20, 2009, for the purpose of helping him fill out his SDTP application, nothing in the note from that appointment indicates she in fact helped him complete the application.

         Dr. Bullard believed William required further stabilization of his substance abuse disorder in order to benefit from PTSD treatment, and she did not believe that he was ready for trauma processing therapy offered at SDTP. She testified that although the SDTP program required only 30 days sobriety, 90 days is best. Dr. Bullard believed the Psychiatry and Addiction Recovery Treatment (“PART”) Program at the Leavenworth VA in Kansas was the next appropriate step for William. PART was a seven-week, dual-diagnosis program that treated about twenty-five veterans with both a substance-abuse disorder and a mental health condition, which would get William closer to the 90-day sobriety mark that Dr. Bullard believed was best before entering the SDTP program.

         On October 15, 2009, in between Dr. Bullard's two individual appointments with William, a VA social worker provided him with an application for the PART program. On October 22, 2009, William reported to VA Psychiatrist Dr. Lee that he decided to apply to the PART program. William was discharged from SARRTP on October 28, 2009, having maintained his ...


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